11.  The second applicant wished to employ the first applicant as a farm hand.
12.  On 6 February 1998 the applicants lodged a request with the Bregenz Labour Market Service (Arbeitsmarktservice) for the grant of an employment permit to the second applicant. They submitted that the first applicant, a national of Bosnia and Herzegovina, and his wife had been resident in Austria since November 1992. Both he and his wife had been granted residence permits (Aufenthaltsbewilligung) that were valid until December 1998. The applicants claimed that the first applicant had a right to take up employment in Austria. They referred in that connection to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey and submitted that those treaties had to be applied by analogy to their case.
13.  On 19 March 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländer­beschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for making an exception under s. 4 (6) of the Act were met.
14.  On 6 April 1998 the applicants appealed. They reiterated the arguments they had submitted before the Bregenz Labour Market Service.
15.  On 25 May 1998 the Vorarlberg Labour Market Service rejected the first applicant’s appeal as inadmissible. It noted that only the second applicant as the proposed employer, not the first applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the first applicant was not a party to the proceedings.
16.  The Vorarlberg Labour Market Service further noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. The first applicant did not fall into any of those categories. The Association Agreement between the European Union and Turkey was not applicable in the present case as the first applicant was not a Turkish national.
17.  The Vorarlberg Labour Market Service went on to dismiss the second applicant’s appeal. It observed that the Bregenz Labour Market Service had proposed a replacement for the first applicant within the meaning of s. 4(2) and (3) of the Employment of Aliens Act, but he had not been taken on. In a telephone conversation the Labour Market Service had been informed by a representative of the second applicant that the proposed replacement had not been employed because the relevant post had already been filled. In further submissions the second applicant stated that the replacement had not complied with the requirements of the post.
18.  The Vorarlberg Labour Market Service concluded that the second applicant had no further interest in employing the first applicant. It observed in particular that the second applicant had not given sufficient reasons as to why the proposed replacement could not work as a farm hand, a post which did not require any special qualification. It concluded that the second applicant was not interested in employing a replacement and dismissed the request for an employment permit under s. 4(1) of the Employment Act. It further noted that, in any event, the conditions for granting an employment permit had not been satisfied as the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for an exception under s. 4(6) of the above Act applied.
19.  On 7 July 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They submitted that the Labour Market Service had not carried out sufficient investigations before reaching its findings. In particular, it had not heard evidence from the second applicant. They further denied that the second applicant had informed the Labour Market Service that the relevant post had been filled, and contested the maximum quota.
20.  Referring to Article 17 of the Geneva Refugee Convention, the Association Agreement between the European Union and Turkey, Article 23 of the Universal Declaration of Human Rights, the European Social Charter and Article 6 of the International Covenant for Economic, Social and Cultural Rights, the applicants submitted that the first applicant had a right to take up employment in Austria and had standing to join the proceedings. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1.
21.  They submitted that the first applicant had come to Austria as a Bosnian refugee, had resided there with his wife since 1992 and was in possession of a residence permit that was valid until December 1998.
22.  On 15 December 1999 the Administrative Court rejected the first applicant’s complaint and dismissed the second applicant’s complaint. It found that none of the first applicant’s rights had been violated, as the refusal to grant the employment permit was not based on reasons related to the first applicant’s personal circumstances under s. 21 of the Employment of Aliens Act.
23.  As to the second applicant’s complaint, it found that the Labour Market Service’s decision was coherent and conclusive. The Labour Market Service had based its decision essentially on the statements of the second applicant. There had, therefore, been no further need to hear representations from the second applicant. The Administrative Court concluded that the Labour Market Service had rightly refused to issue an employment permit under s. 4 (1) of the Employment of Aliens Act. It also decided that it was unnecessary to examine the second applicant’s further submissions questioning whether the maximum quota had been attained.
24.  The Administrative Court further noted that the second applicant had never alleged that the first applicant was a refugee within the meaning of the Geneva Refugee Convention. As regards the reference to the European Social Charter and the International Covenant for Economic, Social and Cultural Rights, it noted that those treaties were not directly applicable and so could not create any subjective rights. At most, they might be of assistance in interpreting the domestic legislation. However, having regard to the clear wording of s. 21 of the Employment of Aliens Act and the fact that there was no prospect of that provision being successfully challenged in the Constitutional Court (Verfassungsgerichtshof), as that court had already ruled that proceedings concerning a request for an employment permit under the Employment of Aliens Act did not concern a “civil right or obligation” within the meaning of Article 6 of the Convention, the Administrative Court said that even the above mentioned interpretation would not lead to recognition of the first applicant’s legal standing in the proceedings concerning the grant of an employment permit.
25.  It went on to note that the Association Agreement between the European Union and Turkey was not applicable as the first applicant was not Turkish.
26.  In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it further found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. The decision was served on the applicants’ counsel on 7 February 2000.
27.  The second applicant was subsequently granted a permit to employ the first applicant from 14 July 2000 until 13 July 2001 and from 14 July 2001 until 13 July 2002.
28.  In February 2002 the applicant’s wife became an Austrian citizen. Consequently, the Employment of Aliens Act is no longer applicable to the first applicant.